Emmanuel Agbanelo Vs Union Bank Of Nigeria Ltd. (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

This is an appeal from the decision of the Court of Appeal (Akintan, Nsofor and Ige, JJCA) dismissing the appellant’s appeal from a decision of the High Court of what was then known as Bendel State. The appellant Mr. Emmanuel Agbanelo, is referred to as “plaintiff” in this judgment. The respondent, Union Bank of Nigeria Limited, is also referred to as “the defendant” in this judgment.

In the High Court of Bendel State (as it then was) holden at Warri (now in the Delta State), the plaintiff sued the defendant claiming as contained in the Further amended Statement of claim which superceded his writ of summons “general and special damages for (the) dishonored cheque” and damages for libel. The plaintiff in paragraph 32 of the Further Amended Statement of Claim itemized the losses he suffered as loss of profit and loss of trade as distributor. However, these are not by themselves causes of action. Having regard to paragraph 29 of the Statement of Claim in which negligence was averred and paragraphs 16 and 17 in which libel was averted, it would appear that the two causes of action in respect of which damages were claimed were defamation and negligence, Inelegantly drafted as the further amended statement of claim was, the High Court and the Court below both proceeded on the footing that the plaintiff’s claims were for damages for negligence and libel.

The facts which gave rise to the plaintiff’s action were not much in dispute, The plaintiff, a businessman who was appointed a sole distributor of a biscuit manufacturing company was a customer of the defendant who were at all material times bankers carrying on business of banking throughout the Federal Republic of Nigeria. At all material times the defendant had one of its branches in Warri at No. 8 Warri/Sapele Road, Warri where the plaintiff operated a current account in the name and style of EPACO (Nigeria) Marketing Company. At the request of the plaintiff, the defendant sometime in April, 1986, issued a bank draft in favour of the manufacturers payable at the defendant’s branch in Surulere. Upon presentation of the draft by the manufacturers for payment it was returned unpaid, endorsed “1st signature irregular”, Claiming that these words endorsed on the draft were defamatory of him and that the draft was negligently issued, the plaintiff claimed damages. Bazunu J. Who heard the suit at the High Court, after merely rehearsing the evidence in the case and arguments of counsel came to the conclusions: In regard to the claim for libel, that from the evidence the claim for libel had not been proved; and, in regard to the claim for negligence, that the plaintiff’s case against the defendant for negligence had not been proved. Beyond stating that on the evidence the claim for libel has not been proved, the Learned judge did not proffer any detailed reasons in law why the claim for libel should be dismissed. However, in regard to the claim for negligence his reasons for dismissing the action put in a nutshell, were that the defendant was “the Union Bank Nigeria Limited (Warri Branch)” and not “the Union Bank Nigeria Limited (Surulere Branch) nor the Union Bank Nigeria Limited.” The Learned judge reasoned thus:

‘Thus for the plaintiff to succeed, he must prove that the defendant as stated in the claim was negligent. In other words that the act complained of was perpetrated by the Union Bank Nigeria Ltd., Warri Branch and that that act amounted to negligence on its part” Having so reasoned he reverted to his earlier finding that:

“There is no evidence that the defendant, that is Union Bank Nigeria Limited. Warri branch was negligent:” and dismissed the claim.

The plaintiff’s appellant to the Court of Appeal was dismissed on the grounds first, that the trial judge was right in the conclusion that libel had not been proved and secondly, that in regard to the claim for negligence since there was no evidence that the Warri Branch of the bank had been negligent the trial judge rightly dismissed the action .

Nsofor. JCA, who delivered the Leading judgment of the Court of Appeal went further to consider, whether the action was properly constituted. He was of the view that because Union Bank of Nigeria Limited (Warri Branch) was put as the name of the defendant, Union Bank of Nigeria Limited was not sued, and the defendant sued was not a legal person. He held that the suit was not properly constituted. Nevertheless, he dismissed the suit. Akintan and Ige JJCA concurred. On this further appeal four questions have arisen for determination, albeit with varying degrees of decisive importance, namely:

(i) whether the words were in the circumstances of the case defamatory;

(ii) whether the High Court and the court below were right in treating branches of the Union Bank Nigeria Limited as separate entities and in regarding the Warri branch of the bank, rather than the bank itself, as the defendant in the case:

(iii) whether the Court below was right in determining whether the action was properly constituted when no such issue arose either at the trial or on the appeal and

(iv) whether the dismissal by the High Court of the claim for negligence was rightly held by the court below. As earlier stated, the trial judge merely rehearsed the evidence in the case and concluded that the claim for libel was not established. The court below did a little better by setting out some principles of law relating to libel but, at the end of the day without expressly stating how they have applied the principles to the facts of the case merely concluded that the trial judge’s conclusion was correct.

Learned Counsel for the plaintiff criticized the judgment of both courts on the ground that they failed to demonstrate adequate consideration of the evidence or of the submission of counsel before the claim for libel was rejected. What amounts to adequate consideration of the evidence in a case should depend on the nature of the issues raised. Where the facts are largely not in dispute cannot be regarded as essential part of a judgment to do more than take note of the evidence given. It is where there is conflict in the evidence on material issues of fact that the judge is expected to review and evaluate the evidence before making a finding. Where there are issues of law or if mixed fact and law it is desirable that the judge should take note of those issues and make pronouncements on them. His failure to do so may in some cases be indicative of failure of the adjudicatory process.

In this case, the trial judge had said in regard to the claim for libel: